GREEN BAY - While prosecutors have cleared officers of criminal wrongdoing in the fatal shooting of a handcuffed man at the county jail, questions about police decision-making during the incident remain.

That's because a federal civil rights lawsuit filed by the family of the late Jonathon C. Tubby insists the Green Bay man didn't have to die, and that the Green Bay police officer who shot him was negligent. A recent update to the filing claims Tubby was being restrained by a police dog when officer Erik O'Brien shot him the night of Oct. 19, 2018.

The lawsuit — which targets O'Brien, Chief Andrew Smith, newly elected Sheriff Todd Delain, Brown County and the city of Green Bay — is likely to hinge on specific elements of what happened in the jail's "sally port" on the night Tubby was shot dead.

Attorneys for the city and county have denied wrongdoing. They insist Tubby was shot because of his actions — not cooperating with police, hiding his hands beneath his shirt as if he had a gun, and running at O'Brien.

While city and county officials won't discuss the issue while the suit is pending, and a Tubby family attorney didn't return a call this week, a review of the incident shows several key issues will help determine if a judge or a jury determines if police are liable:

Question: Should O'Brien have paid more attention to a search being conducted by a trainee with eight weeks' experience?

Trainee Colton Wernecke, on the job for two months, searched Tubby at the arrest scene outside a downtown hotel. O'Brien said he saw the search from the corner of his eye while dealing with a passenger, who also faced arrest.

Significance: Had O'Brien been more convinced the search was thorough, perhaps he would not have concluded later that Tubby had a gun. If officers had been sure Tubby wasn't armed, it stands to reason he wasn't a threat.

Police Chief Andrew Smith has said the search was done properly. But he also acknowledged that, while most searches are effective, officers sometimes miss weapons and contraband, particularly small items.

After unhooking his seatbelt and getting his hands in front of him, Tubby hid his cuffed hands inside his T-shirt and extended his fingers in a way that led O'Brien to believe he might have had a gun. He told O'Brien "I'll do it." He didn't elaborate.

Initially, officers seemed to believe he would shoot himself.

Later, O'Brien began to believe Tubby might want to shoot him. The officer told investigators Tubby made eye contact with him from the car; O'Brien said he considered that "target acquisition" by Tubby.

Significance: Had he stated a specific intent, police might have acted differently. A suicide threat might have prompted officers to summon a trained negotiator.

Prosecutors said authorities learned after the incident that Tubby has been extremely depressed because of a cancer diagnosis, and was impaired by multiple drugs.

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A Green Bay Police photo of Jonathon Tubby the night he was fatally shot by police in October.(Photo: Adam Wesley/USA TODAY NETWORK-Wisconsin)

Q: If officers thought Tubby was armed, why did they make it easier for him to get out of the car?

Police became concerned that the car's windows were fogging and they wouldn't be able to see Tubby. Tubby wiped fog off the windows once, but didn't respond when officers told him to wipe them again.

Officer Eric Allen, a member of the department's SWAT team, dislodged the squad's rear window by firing a wooden slug at it. Police then used a rake-like device to pull the glass from the car. Allen then sprayed a mace-like liquid into Tubby's face from the turret of the department's BearCat vehicle.

Significance: Allowing Tubby to stay in the car would seem to have made it more difficult for Tubby to harm an officer. Inside the car, he couldn't have come into physical contact with police. If he'd had a gun, he would've had to fire through glass.

Rear doors of a patrol car can't be opened from the back seat. Had Tubby wanted to leave, he would have had to kick out a passenger window and crawl through it. That would have made him easier to arrest if he tried to leave the car, and less able to use a gun if he'd had one.

But officers also feared Tubby was a threat to himself, and would be safer in custody than in the "barricade situation" he'd created. Department policy says officers in such situations should "attempt to avoid forceful confrontation," maintain communication and "await arrival of specialized personnel" — like Allen — and "trained negotiators."

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A Green Bay Police photo of Jonathon Tubby the night he was fatally shot by police in October.(Photo: Adam Wesley/USA TODAY NETWORK-Wisconsin)

Q: A garage-type door remained open during the incident, offering an escape route. Why didn't anyone close it?

Video shows officers standing in and outside the doorway during the standoff. There's been no indication officers asked that it be closed, or tried to close it.

Significance: The open door was the only clear way out of the sally port — other doors were closed, or led inside the jail. When Tubby ran after being shot with a beanbag round, he ran in the direction of the door — his only escape route.

Q: In a room with multiple armed officers, why did O'Brien hear a shot and conclude it was fired by the one person he wasn't sure was armed? Why didn't the officer who fired say he was doing so?

Once Tubby crawled out of the squad car, an officer in the BearCat shot him with a beanbag round as he stood on the car's trunk. One officer told investigators he heard the shot and realized it was a beanbag round.Tubby ran as a second beanbag round was fired.

Several officers told investigators they knew those shots were fired from a shotgun, which sounds different than a handgun. O'Brien, who investigators said is trained in the use of beanbag rounds, concluded Tubby had fired.

Green Bay's policy calls for a verbal warning before an officer fires a beanbag round. It grants an exception when a warning "is not practicable due to circumstances." The city's likely position is that officers didn't have time.

Significance: Had O'Brien known Tubby hadn't fired, he might not have felt threatened.

Q: What role did a police dog play in ending the incident? And why did O'Brien fire if the dog was deployed?

Green Bay Officer Joseph Merrill said he saw Tubby, after he was shot, on the ground with police dog Pyro "still biting" his right buttock. Merrill said the dog did not let go when commanded to, prompting Merrill to tell handler Scott Salzmann to control Pyro and take him outside "because he didn't want anyone else getting bit unintentionally."

Merrill, who was in the BearCat, said he didn't see the shooting.

O'Brien's statement offers little about the the dog. He said he heard a pop, saw Tubby fall with his hand concealed, and believed Tubby was shooting at officers.

"O'Brien stated that Tubby's body was descending … and his right hand was still concealed. Tubby's body was twisting to the left, and he was looking across his body to the left and toward the officers behind Sgt. Denney's squad. O'Brien stated he was concerned that Tubby was shooting at his fellow officers," the state found.

"He believed the 'pop' he heard was Tubby shooting the gun."

Significance: Tubby's lawsuit argues that the dog did or could have stopped Tubby's progress and, if so, shooting Tubby was unnecessary. O'Brien says he fired to protect his fellow officers because he believed Tubby had shot at them.

Answerable questions

People on social media have repeatedly asked two questions since details of the shooting became public. The questions, and their answers:

Q: Why didn't officers use a Taser, rather than beanbag rounds?

To a person who is elevated, Taser poses a greater risk: inability to break a fall. The electric jolt makes a person's muscles contract: his legs buckle, and he can't extend his arms. A beanbag round, which doesn't affect the muscles, is seen as safer.

Q: At a scene with multiple armed officers, why didn't others fire?

O'Brien was the closest officer to where Tubby ran. An officer behind him told state investigators he would have fired if O'Brien hadn't.

Future questions

The lawsuit will resolve the civil liability issue, but not others. Those will be up to city police officials, and a discussion between police and sheriff's officials in another.

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Brown County District Attorney David Lasee announces that no charges will be filed in the fatal shooting of Jonathon Tubby by Green Bay Police in October at the Brown County Jail on Friday, February 1, 2019 in Green Bay, Wis.(Photo: Adam Wesley/USA TODAY NETWORK-Wisconsin)

Q: Will officers be disciplined?

Brown County District Attorney David Lasee has cleared the officers involved in the incident of criminal wrongdoing, but they could face discipline if Smith determines they didn't follow proper procedures.

Smith has reviewed video of the incident, and a report by state investigators, but won't say if he plans disciplinary action.

The incident is under review by Green Bay's Critical Incident Review Board, which per department policy includes "numerous department employees of all ranks." The board's role is to make recommendations to Smith. The process has no strict timetable.

The review will determine if officials think mistakes were made, whether any of the officers should be disciplined and whether procedures need to change.

Another thing members likely will consider: How officers from their agency and from the county worked together during the incident.

Q: When will authorities be capable of recording video in the sally port?

Surveillance video likely would have aided the investigation, but the camera system in the sally port doesn't record. County officials said an upgrade has been in the works, and that a recording system will be installed this summer.

Q: Will police procedures change?

Smith indicated shortly after the incident that he wants to meet with Delain to improve guidelines on whether the sheriff's office or the arresting agency is responsible for resolving problems in the sally port, and at what point the county takes custody of a prisoner.